SZSQN v Minister for Immigration

[2013] FCCA 1849

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSQN v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1849

Catchwords:
MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal.

ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that it decided the review without hearing from the applicant and breached s.424A of the Migration Act 1958.

Legislation:

Migration Act 1958, ss.36, 424A, 425, 425A, 426A, 441A, 474

Cases Cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Minister for Immigration & Multicultural & Indigenous Affairs v SZFML (2006) 236 ALR 294
SZDQO v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 144 FCR 251
SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609

Applicant: SZSQN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 454 of 2013

Judgment of: Judge Cameron

Hearing date: 22 October 2013

Date of Last Submission: 22 October 2013

Delivered at: Sydney

Delivered on: 22 October 2013

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The name of the first respondent be amended in the Court record to “Minister for Immigration and Border Protection”.

2. The application be dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $4,000.00.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 454 of 2013

SZSQN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of India who arrived in Australia on 9 July 2009.  On 9 May 2012 he lodged an application for a protection visa alleging that he feared persecution in India at the hands of his wife’s family.  On 9 August 2012 the applicant’s application was refused by a delegate of the first respondent (“Minister”).  The applicant then applied to the second respondent (“Tribunal”) for a review of that departmental decision.  He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.

2. In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

3. For the reasons which follow, the application will be dismissed.

Background facts

1. The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4-6 of the Tribunal’s decision which I will summarise to the extent that they are relevant.

2. The applicant made the following claims in his application for a protection visa:

   a)he arrived in Australia on 9 July 2009 on a student dependant visa which was valid until 30 November 2011;

   b)he separated from his wife in Brisbane on 15 November 2009;

   c)he feared that if he returned to India his wife and her relatives would kill him.  He and his wife had had a “huge misunderstanding” shortly after arriving in Australia and he was constantly harassed to pay her family money.  After separating from his wife, he had been threatened day and night by her and her relatives.  He moved from Brisbane to Sydney to get away from them, but they then started to telephone his relatives in India, threatening his family and asking for him; and

   d)he had not returned to India because he was scared and believed that protection in India would be hard to obtain because of India’s huge population.  He could easily be tracked and killed and could not rely on the legal system or police to protect him.

3. The applicant was invited to attend an interview with the Minister’s delegate scheduled for 12 July 2012.  He did not attend that interview as he was certified medically unfit.  He also did not attend a subsequent interview arranged for 7 August 2012. 

The Tribunal’s decision and reasons

1. On 20 November 2012 the Tribunal wrote to the applicant pursuant to s.425 of the Act to advise him that it had considered all the material before it but was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to a hearing on 15 January 2013 to give oral evidence and present arguments. The applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal might make a decision on his application without further notice.

2. On 14 January 2013, the Tribunal received a telephone request from the applicant that the hearing be postponed.  Later that day, he faxed a medical certificate dated 9 January 2013 to the Tribunal.

3. On 16 January 2013 the Tribunal sent the applicant a letter stating that the hearing had been postponed and inviting him to a hearing on 14 February 2013. No response was received from the applicant and he did not appear before the Tribunal on the day and at the time he was scheduled to appear. In those circumstances, and pursuant to s.426A of the Act, the Tribunal proceeded to make a decision on the review without taking any further action to enable the applicant to appear before it.

4. After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”) or s.36(2)(aa) of the Act.

5. The Tribunal found that the applicant’s claims were vague, lacking in detail and were insufficient for it to be satisfied that the events he claimed to have occurred were true.  It therefore did not accept the claimed future consequences of those events.  In this connection, the Tribunal was concerned about the lack of information provided by the applicant regarding the “misunderstanding” between him and his wife, their marriage and why and when the alleged harassment and threats had occurred.  It was also concerned by the lack of information about where the applicant’s wife’s family lived in India and why the applicant did not think that the Indian authorities would protect him.

Proceedings in this Court

1. In the application commencing these proceedings the applicant alleged:

   1.The Second Respondent committed jurisdictional error by failing to comply with mandatory provisions of the Act.

   Particulars:

   (a)The Second Respondent acted on the assumption that the applicant had received its invitation to appear before the Tribunal prior to 14 February 2013.  On account of the mistake of the third party the Tribunal inadvertently failed to discharge its statutory duty.  By consequences Tribunal decision is not a decision at all in law.

   (b)My point is that having missed the invitation letter, the Tribunal did not make any other attempt to contact me to attend in the hearing, it became imperative that, before the Tribunal member made up its mind to dismiss the application, such information was required to be sent to me written to make comments, in order for fully compliance of section 424A.

   (c)The Tribunal decision was fundamentally influenced by not receiving evidence from me at hearing.  In the Tribunal’s reasons for decision the Tribunal mention the negative impact on its decision of not having had the opportunity to obtain further information.

2. At the hearing of this application, the applicant also said that at some point, presumably before 16 January 2013, he moved to a new address which he conceded he had not provided to the Tribunal.  He said that he did not attend the Tribunal’s hearing because he did not receive notice of it.

3. The applicant’s case turned on two issues:

   a)whether the Tribunal had notified him of the adjourned hearing date such that his non-attendance caused s.426A of the Act to be engaged and for the Tribunal to be empowered to make a decision on the review in his absence; and

   b)whether the Tribunal breached s.424A of the Act.

Discretion to make a decision

1. The applicant can be understood to have alleged that he did not receive the invitation to attend the adjourned hearing and that this was either because of a “mistake” by a “third party” or because he had changed his address without advising the Tribunal. 

2. Whether the applicant actually received the invitation is of no significance if the Tribunal complied with the prescribed procedure set out in ss.425A and 441A of the Act. Based on the information found at pp.55 and 60 of the Court Book, which was exhibit 1, and in the affidavit of Arunima Lal affirmed on 17 April 2013, I find that the original invitation to the Tribunal hearing, dated 20 November 2012, was effectively notified to the applicant in accordance with the requirements of ss.425A and 441A of the Act. Having complied with those requirements, the Tribunal was empowered to make a decision on the review without hearing from the applicant. The fact that the hearing was rescheduled at the applicant’s request did not change that fact: Minister for Immigration & Multicultural & Indigenous Affairs v SZFML (2006) 236 ALR 294 at 307 [58]-[60]; SZDQO v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 144 FCR 251 at 262 [29].

3. The Tribunal’s decision to make a decision on the review consequent upon the applicant’s failure to attend the rescheduled hearing involved an exercise of discretion.  In circumstances where:

   a)the applicant had sought and obtained adjournments before the delegate and before the Tribunal and had failed to appear before the delegate or the Tribunal on the rescheduled dates;

   b)the rescheduled date before the Tribunal was advised to the applicant in a letter which I accept was sent on 16 January 2013 to the address to which the original hearing invitation had been sent successfully, which was the address advised by the applicant in his application for the review; and

   c)no evidence suggests that the applicant sought to foreshadow or explain to the Tribunal why he failed to attend the rescheduled hearing,

   the Tribunal’s decision to decide the matter seems unexceptional.  In any event, the applicant did not identify any basis on which the Court should conclude that it was exceptionable.  I do not find that the Tribunal’s exercise of discretion in proceeding to a decision in the absence of the applicant miscarried or that its decision on the review was affected by jurisdictional error for that reason. 

4. It should also be noted that the Tribunal’s statutory and procedural fairness obligations in relation to its notification to the applicant of its hearing dates was satisfied by its dispatch of the invitation letters of 20 November 2012 and 16 January 2013.  It was not required to do more to alert the applicant to the scheduled hearing dates. 

Breach of s.424A

1. Section 424A of the Act relevantly provides:

   424AInformation and invitation given in writing by Tribunal

   (1)    Subject to subsections (2A) and (3), the Tribunal must:

   (a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

   (b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

   (c)     invite the applicant to comment on or respond to it. …

2. The Tribunal’s decision was not based so much on information before it as on information which was not before it, as the third particular of the applicant’s allegation recognised. That is to say, the information which was before the Tribunal was insufficient to satisfy it that the applicant had a well-founded fear of persecution for a Convention reason or met the complementary protection criteria in s.36 of the Act.

3. Section 424A is not concerned with the Tribunal’s conclusions about the persuasiveness of the information before it or with gaps in such information, these matters being the bases of the Tribunal’s decision on this occasion: SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609 at 616 [18]. As a result, s.424A had no relevance to the decision in question and thus no breach of its requirements has been demonstrated.

4. Finally, to the extent that the applicant might be understood to have alleged that the Tribunal should have supplied him with a draft of its reasons so he might comment on them, which the first respondent suggested was an available interpretation of the relevant allegation, it should be noted that the Tribunal had no such duty.

Conclusion

1. Jurisdictional error on the part of the Tribunal has not been demonstrated.

2. Consequently, the application will be dismissed.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date: 12 November 2013